Introduction: Bill HB3228
HB 3228 by Madden - authorizes TDCJ (and TYC) to own and operate electronic, mechanical or other devices for the detection and monitoring of cell phones, and authorizes the OIG to possess, install, operate and monitor these devices. Jamming devices, to the extent consistent with federal law, are also authorized. The bill also makes it illegal to obtain a cell phone or component part with intent to deliver to an offender, to possess with intent to deliver, to provide another person with a cell phone or component part with intent to deliver to an offender, or to purchase minutes for the offender's use. ANALYSIS:
This bill was designed to forbid the use of any cell phone communication through prison facilities. In order to do this Texas officials testified before congress. They urged Congress to let states electronically cut off cell phone signals made from prison. Inmates that were smuggled cell phones, would call victims threatening them, or witnesses. They would also continue to conduct criminal activity outside of prison. For example, a death row inmate used a cell phone he bought from a guard to call and make treats against Sen. John Whitmire of Houston. After this call, Gov. Rick Perry ordered a lockdown of all state prisons to search for contraband. In two weeks, guards found dozens of cell phones and equipment with the majority being death row inmate. Before this bill federal law prohibits entities besides the federal government from authorizing cell phone jamming. Sen. Kay Bailey Hutchison is sponsoring a bill to change that. Her bill would allow prisons and correction facilities to petition the FCC for permission to jam wireless devices. This bill went though the House and the Senate before it was signed by Gov. Perry. It will go into effect September 1, 2009. Other than controlling the lack of cell phone signal, this bill will also control the prohibited substances or contraband and items established by an inmate of a correctional facility that are illegal to posses. Pros/Cons:
The obvious disadvantage of this bill would be the risk of communication problems in the case of an emergency. If cell phone signals are jammed, then the only use of contact would be landlines in case of an emergency. The advantages of this bill I believe outweigh the bad. Victims and witnesses would stop being threatened and unsupervised communication from inmates to the outside world that order outside murders, prison riots, and drug smuggling rings would be stopped. Bill Outline: Sections
SECTION 1. Reenacts and amends Section 38.11, Penal Code, as amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of the 79th Legislature, Regular Session, 2005, as follows:
(1) an alcoholic beverage, controlled substance, or dangerous drug to a person in the custody of a correctional facility, except on the prescription of a practitioner, rather than an alcoholic beverage, controlled substance, or dangerous drug to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except on the prescription of a physician or practitioner, as defined in Section 551.003 (Definitions), Occupations Code;
(2) a deadly weapon to a person in the custody of a correctional facility, rather than a deadly weapon to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles;
(3) a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility, rather than a cellular telephone or other wireless communications device or a component of one of those devices, cigarette, tobacco product, or money to an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice (TDCJ) or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except for money that is provided for the benefit of the juvenile in accordance with facility rules;
(4) money to a person confined in a correctional facility, rather than a cellular telephone or money to a person confined in a local jail regulated by the Commission on Jail Standards; or (5) a cigarette or tobacco product to a person confined in a correctional facility, except that if the facility is a local jail regulated by the Commission on Jail Standards, the person commits an offense only if providing the cigarette or tobacco product, violates certain rules or regulations adopted by the sheriff or jail administrator. Makes nonsubstantive and conforming changes.
(b) Deletes existing text providing that a person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a secure correctional facility or a secure detention facility for juveniles, except for delivery to a facility warehouse, pharmacy, or physician.
(c) Provides that a person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by a correctional facility, rather than TDCJ, the Texas Youth Commission (TYC), or a secure correctional facility or secure detention facility for juveniles, except for delivery to a warehouse, pharmacy, or physician on property owned, used, or controlled by TDCJ, TYC, or the facility.
(d) Provides that a person commits an offense if the person possesses a controlled substance or dangerous drug while in a correctional facility or on property owned, used, or controlled by a correctional facility or possesses a deadly weapon while in a correctional facility. Deletes existing text providing that a person commits an offense if the person possesses a controlled substance or dangerous drug while on property owned, used, or controlled by TDCJ, TYC, or a secure correctional facility or secure detention facility for juveniles, or in a correctional facility or a secure correctional facility or secure detention facility for juveniles, or possesses a deadly weapon while in a correctional facility or in a secure correctional facility or secure detention facility for juveniles. Makes nonsubstantive changes.
(e) Provides that it is an affirmative defense to prosecution under Subsection (b), (c), or (d)(1) (relating to possessing a controlled substance or dangerous drug while in a correctional facility) that the person possessed the alcoholic beverage, controlled substance, or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the beverage, substance, or drug to a warehouse, pharmacy, or practitioner, rather than physician, on property owned, used, or controlled by the correctional facility, rather than TDCJ or TYC, or by the operator of a secure correctional facility or secure detention facility for juveniles. Provides that it is an affirmative defense to prosecution under Subsection (d)(2) (relating to possessing a deadly weapon while in a correctional facility) that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility who is authorized to possess the deadly weapon while on duty or traveling to or from the person's place of assignment. Makes nonsubstantive changes.
(f) Defines "component" and "correctional facility."
(g) Provides that an offense under this section is a felony of the third degree.
(h) Provides that notwithstanding Section 15.01(d) (relating to the penalties for an offense under this section), if a person commits the offense of criminal attempt to commit an offense under Subsection (a), (b), or (c), the offense committed under Section 15.01 (Criminal Attempt) is a felony of the third degree. Makes nonsubstantive changes.
(i) Provides that it is an affirmative defense to prosecution under Subsection (b) that the actor takes four ounces or less of an alcoholic beverage into the correctional facility, rather than the correctional facility or the secure correctional facility or secure detention facility for juveniles, and personally consumes all of the alcoholic beverage or departs from the facility with any portion of the beverage not consumed.
(j) Provides that a person commits an offense if the person, while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices, rather than provides that a person commits an offense if the person while an inmate of a correctional facility operated by or under contract with TDCJ or while in the custody of a secure correctional facility or secure detention facility for juveniles possesses a cellular telephone or other wireless communications device or a component of one of those devices.
(k) Provides that a person commits an offense if, with intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility, the person acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody, provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody, or makes a payment to a communication common carrier, as defined by Article 18.20, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications. Author:
Madden Sponsor:
The sponsor of this bill was Senator John Whitmire, D- Houston. He is the chairman of the Senate committee that oversees the state prison system who receceived a threatening call from a death row inmate.
Supporters:
CSHB 3228 would close a loophole in state law by extending the current offense of possessing a cell phone so that it applied to persons in local jails and would reorganize, without making substantive changes, statutes dealing with providing and possessing certain items in correctional facilities to make them easier to understand and to use.
While many of the offenses dealing with providing prohibited substances apply to local jail inmates, one important section making it a crime to possess a cell phone while in custody does not. Instead, this offense can be a class C misdemeanor (maximum fine of $500) under Penal Code sec. 38.114. Under this section, possessing a cell phone in a local jail would be an offense if the jail included cell phones in its definition of contraband. A class C misdemeanor does not reflect the seriousness of this crime and provides little deterrent to someone already in jail. CSHB 3228 would remedy this by amending Penal Code 38.11 (j) to make the offense of possessing a cell phone apply to all persons in all correctional facilities, including county jails. Possessing a cell phone in a jail poses the same security threat as possessing one in all other correctional facilities and should be treated as such. This offense should carry the same third-degree felony punishment currently applied to providing a cell phone to a person in a local jail. The bill would not include the possession of cell phones in community corrections facilities operated by local probation departments as part of the offense. This would give those facilities the option to define cell phones as contraband and make their possession illegal, if they desired. These facilities often are treatment or rehabilitation programs and house persons on probation, and they may want the flexibility to allow cell phones due to the nature of their program.
HB 3228 by Madden - authorizes TDCJ (and TYC) to own and operate electronic, mechanical or other devices for the detection and monitoring of cell phones, and authorizes the OIG to possess, install, operate and monitor these devices. Jamming devices, to the extent consistent with federal law, are also authorized. The bill also makes it illegal to obtain a cell phone or component part with intent to deliver to an offender, to possess with intent to deliver, to provide another person with a cell phone or component part with intent to deliver to an offender, or to purchase minutes for the offender's use.
ANALYSIS:
This bill was designed to forbid the use of any cell phone communication through prison facilities. In order to do this Texas officials testified before congress. They urged Congress to let states electronically cut off cell phone signals made from prison. Inmates that were smuggled cell phones, would call victims threatening them, or witnesses. They would also continue to conduct criminal activity outside of prison. For example, a death row inmate used a cell phone he bought from a guard to call and make treats against Sen. John Whitmire of Houston. After this call, Gov. Rick Perry ordered a lockdown of all state prisons to search for contraband. In two weeks, guards found dozens of cell phones and equipment with the majority being death row inmate. Before this bill federal law prohibits entities besides the federal government from authorizing cell phone jamming. Sen. Kay Bailey Hutchison is sponsoring a bill to change that. Her bill would allow prisons and correction facilities to petition the FCC for permission to jam wireless devices. This bill went though the House and the Senate before it was signed by Gov. Perry. It will go into effect September 1, 2009. Other than controlling the lack of cell phone signal, this bill will also control the prohibited substances or contraband and items established by an inmate of a correctional facility that are illegal to posses.
Pros/Cons:
The obvious disadvantage of this bill would be the risk of communication problems in the case of an emergency. If cell phone signals are jammed, then the only use of contact would be landlines in case of an emergency. The advantages of this bill I believe outweigh the bad. Victims and witnesses would stop being threatened and unsupervised communication from inmates to the outside world that order outside murders, prison riots, and drug smuggling rings would be stopped.
Bill Outline: Sections
SECTION 1. Reenacts and amends Section 38.11, Penal Code, as amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of the 79th Legislature, Regular Session, 2005, as follows:
(1) an alcoholic beverage, controlled substance, or dangerous drug to a person in the custody of a correctional facility, except on the prescription of a practitioner, rather than an alcoholic beverage, controlled substance, or dangerous drug to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except on the prescription of a physician or practitioner, as defined in Section 551.003 (Definitions), Occupations Code;
(2) a deadly weapon to a person in the custody of a correctional facility, rather than a deadly weapon to an inmate of a correctional facility or to a person in the custody of a secure correctional facility or secure detention facility for juveniles;
(3) a cellular telephone or other wireless communications device or a component of one of those devices to a person in the custody of a correctional facility, rather than a cellular telephone or other wireless communications device or a component of one of those devices, cigarette, tobacco product, or money to an inmate of a correctional facility operated by or under contract with the Texas Department of Criminal Justice (TDCJ) or to a person in the custody of a secure correctional facility or secure detention facility for juveniles, except for money that is provided for the benefit of the juvenile in accordance with facility rules;
(4) money to a person confined in a correctional facility, rather than a cellular telephone or money to a person confined in a local jail regulated by the Commission on Jail Standards; or (5) a cigarette or tobacco product to a person confined in a correctional facility, except that if the facility is a local jail regulated by the Commission on Jail Standards, the person commits an offense only if providing the cigarette or tobacco product, violates certain rules or regulations adopted by the sheriff or jail administrator. Makes nonsubstantive and conforming changes.
(b) Deletes existing text providing that a person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a secure correctional facility or a secure detention facility for juveniles, except for delivery to a facility warehouse, pharmacy, or physician.
(c) Provides that a person commits an offense if the person takes a controlled substance or dangerous drug on property owned, used, or controlled by a correctional facility, rather than TDCJ, the Texas Youth Commission (TYC), or a secure correctional facility or secure detention facility for juveniles, except for delivery to a warehouse, pharmacy, or physician on property owned, used, or controlled by TDCJ, TYC, or the facility.
(d) Provides that a person commits an offense if the person possesses a controlled substance or dangerous drug while in a correctional facility or on property owned, used, or controlled by a correctional facility or possesses a deadly weapon while in a correctional facility. Deletes existing text providing that a person commits an offense if the person possesses a controlled substance or dangerous drug while on property owned, used, or controlled by TDCJ, TYC, or a secure correctional facility or secure detention facility for juveniles, or in a correctional facility or a secure correctional facility or secure detention facility for juveniles, or possesses a deadly weapon while in a correctional facility or in a secure correctional facility or secure detention facility for juveniles. Makes nonsubstantive changes.
(e) Provides that it is an affirmative defense to prosecution under Subsection (b), (c), or (d)(1) (relating to possessing a controlled substance or dangerous drug while in a correctional facility) that the person possessed the alcoholic beverage, controlled substance, or dangerous drug pursuant to a prescription issued by a practitioner or while delivering the beverage, substance, or drug to a warehouse, pharmacy, or practitioner, rather than physician, on property owned, used, or controlled by the correctional facility, rather than TDCJ or TYC, or by the operator of a secure correctional facility or secure detention facility for juveniles. Provides that it is an affirmative defense to prosecution under Subsection (d)(2) (relating to possessing a deadly weapon while in a correctional facility) that the person possessing the deadly weapon is a peace officer or is an officer or employee of the correctional facility who is authorized to possess the deadly weapon while on duty or traveling to or from the person's place of assignment. Makes nonsubstantive changes.
(f) Defines "component" and "correctional facility."
(g) Provides that an offense under this section is a felony of the third degree.
(h) Provides that notwithstanding Section 15.01(d) (relating to the penalties for an offense under this section), if a person commits the offense of criminal attempt to commit an offense under Subsection (a), (b), or (c), the offense committed under Section 15.01 (Criminal Attempt) is a felony of the third degree. Makes nonsubstantive changes.
(i) Provides that it is an affirmative defense to prosecution under Subsection (b) that the actor takes four ounces or less of an alcoholic beverage into the correctional facility, rather than the correctional facility or the secure correctional facility or secure detention facility for juveniles, and personally consumes all of the alcoholic beverage or departs from the facility with any portion of the beverage not consumed.
(j) Provides that a person commits an offense if the person, while confined in a correctional facility, possesses a cellular telephone or other wireless communications device or a component of one of those devices, rather than provides that a person commits an offense if the person while an inmate of a correctional facility operated by or under contract with TDCJ or while in the custody of a secure correctional facility or secure detention facility for juveniles possesses a cellular telephone or other wireless communications device or a component of one of those devices.
(k) Provides that a person commits an offense if, with intent to provide to or make a cellular telephone or other wireless communications device or a component of one of those devices available for use by a person in the custody of a correctional facility, the person acquires a cellular telephone or other wireless communications device or a component of one of those devices to be delivered to the person in custody, provides a cellular telephone or other wireless communications device or a component of one of those devices to another person for delivery to the person in custody, or makes a payment to a communication common carrier, as defined by Article 18.20, Code of Criminal Procedure, or to any communication service that provides to its users the ability to send or receive wire or electronic communications.
Author:
Madden
Sponsor:
The sponsor of this bill was Senator John Whitmire, D- Houston. He is the chairman of the Senate committee that oversees the state prison system who receceived a threatening call from a death row inmate.
Supporters:
CSHB 3228 would close a loophole in state law by extending the current offense of possessing a cell phone so that it applied to persons in local jails and would reorganize, without making substantive changes, statutes dealing with providing and possessing certain items in correctional facilities to make them easier to understand and to use.
While many of the offenses dealing with providing prohibited substances apply to local jail inmates, one important section making it a crime to possess a cell phone while in custody does not. Instead, this offense can be a class C misdemeanor (maximum fine of $500) under Penal Code sec. 38.114. Under this section, possessing a cell phone in a local jail would be an offense if the jail included cell phones in its definition of contraband. A class C misdemeanor does not reflect the seriousness of this crime and provides little deterrent to someone already in jail. CSHB 3228 would remedy this by amending Penal Code 38.11 (j) to make the offense of possessing a cell phone apply to all persons in all correctional facilities, including county jails. Possessing a cell phone in a jail poses the same security threat as possessing one in all other correctional facilities and should be treated as such. This offense should carry the same third-degree felony punishment currently applied to providing a cell phone to a person in a local jail. The bill would not include the possession of cell phones in community corrections facilities operated by local probation departments as part of the offense. This would give those facilities the option to define cell phones as contraband and make their possession illegal, if they desired. These facilities often are treatment or rehabilitation programs and house persons on probation, and they may want the flexibility to allow cell phones due to the nature of their program.
Timeline:
http://www.legis.state.tx.us/BillLookup/Actions.aspx?LegSess=81R&Bill=HB3228